Springer v. St. Louis Southwestern Ry. Co.

• Decision Date: 04 April 1908
• Docket Number: 2,680.
• Parties: SPRINGER v. ST. LOUIS SOUTHWESTERN RY. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

161 F. 801

SPRINGER v. ST. LOUIS SOUTHWESTERN RY. CO.

No. 2,680.

United States Court of Appeals, Eighth Circuit.

April 4, 1908

Charles T. Coleman (Samuel M. Taylor, William D. Jones, George W Murphy, and William M. Lewis, on the brief), for plaintiff in error.

Nicholas J. Gantt, Jr. (Samuel H. West, Frank G. Bridges, and William T. Wooldridge, on the brief), for defendant in error.

Before SANBORN and ADAMS, Circuit Judges, and PHILIPS, District Judge.

PHILIPS District Judge.

This is an action by the administratrix of John I. Springer to recover damages for personal injury to him, resulting in his death, alleged to have been occasioned by the negligence of the defendant railway company. About 2 o'clock p.m February 13, 1907, a fire broke out in an addition to the city of Pine Bluff, Ark. It was of such character as to destroy nearly 100 houses and drive the inhabitants into the streets and southward onto the railroad tracks of the defendant. Immediately on the south side of this addition extending along three blocks, were the switchyards of the defendant, running east and west. There was a network of perhaps 12 tracks used exclusively by the railroad for storing and switching its cars. There were no street or road crossings over said tracks. The fire originated in a lot in the westernmost block, bordering on the western end of the switchyard. The fire spread eastward and northeast.

While the evidence tended to show that there were some facilities for the people to pass out to the west, and to the northeast to the ground, known as the 'shop property,' where the railroad and other shops were located, the readiest mode of escape for the people from the fire area and to carry out their household goods and effects was onto and over the said railroad tracks. Naturally enough, there was intense excitement among the people, hurrying and struggling to save their exposed personal property, which they undertook to accomplish by carrying and tumbling the household goods wherever they could find a place between the net work of railroad tracks. When the fire began to extend eastward, there were cars of various kinds on the tracks next to the lots where the fire raged. Within the first 45 minutes of the fire the danger to the cars became apparent, and the employes of the company had removed from the west to the east the cars off of the first five northernmost tracks. On the sixth track there then stood a train of freight cars, at one point in which the cars were broken, with a space between them of four or five feet. Some of the people, in carrying their household effects to the south, would climb through this train over the drawheads, and others began to pass through the said narrow passageway where the cars stood apart. About this time the yard master or foreman discovered that the oil tanks on the cars to the west side of said cut off were becoming so hot from the heat of the fire they began to smoke. To save the company's property, as well as to prevent a not improbable explosion, augmenting the impending danger to property and the lives of people within its range, the superintendent gave direction to the crew to move said train to the east out of danger. To effect this the engine was carried to the west end of the train, facing east, to push it eastward.

Springer did not live in said addition, and had no property interests there to look after. The plaintiff's witness Frazier was indulged to testify that Mr. Peck, division superintendent of the defendant, told him:

'That he had had the shops closed down and ordered the men to come down and help save the stuff. He told me to keep them as long as they could do any good. The shopmen were at the fire. They carried my goods out of the house; but the goods were burned up in the street.

Most of the goods were carried over, then, in the railroad yards.'

To say nothing of this being mere hearsay testimony, there is nothing in the record to show that Springer was in the employ of the defendant. The only testimony touching this matter is that of the widow of the deceased, who said:

'He (Springer) was employed by the Cotton Belt Railway Company as a scratch boss in the mill; that is, he marked the timber to be dressed.'

His immediate foreman, Wheelan, testified:

'I was foreman in the mill department of the shops, and Springer worked under me. The men were not ordered to quit work and go to the fire. They kept dropping out and going. Springer was familiar with the yards. I do not know that Springer had gone to the fire. I went to the fire after all the men had gone. I did not tell them not to go.'

After he reached the vicinity of the fire, witness Peebles testified that he (Peebles) had been carrying goods out of a house, and, when he went out to the railroad tracks and discovered that some goods were taking fire, he saw Springer and said to him, 'Let's try to save some of the stuff;' that they carried a dresser through said opening, then returned and picked up a mattress, and while Springer was attempting to pass through the opening with it he was caught and crushed between the cars.

The negligent liability of the defendant railroad for this accident is charged in two counts of the petition. The substance of the first count is that, while the people and Springer were fleeing with portions of their goods across said tracks, 'the defendant, without exercising ordinary care and caution, and without keeping a constant lookout for persons upon its tracks, negligently, recklessly, and wantonly, by its agents and employes, with a locomotive steam engine pushed certain cars then and there standing on its said tracks, which said Springer and others were passing, causing them with great force to come together, catching said deceased,' etc. The second count, after setting out the preliminary facts, charges that:

'The defendant, without exercising ordinary care and caution, and without keeping a constant lookout for persons upon its tracks, negligently, recklessly, and wantonly, by its agents and employes, with a locomotive steam engine, negligently, wantonly, and violently pushed certain cars then and there standing on its tracks, and which cars were at the time about four or five feet apart, and between which said John I. Springer and others were passing, causing them with great force to come together, catching said deceased.'

The answer, after setting out the facts occasioning the movement of said cars, alleged contributory negligence of the deceased. At the conclusion of the evidence the court directed a verdict for the defendant.

Much reliance is placed by plaintiff's counsel upon the following statute of Arkansas (Kirby's Dig. Sec. 6607):

'It is the duty of all persons running trains in this state upon any railroad to keep a constant lookout for persons and property upon the tracks of any and all railroads, and if any persons or property shall be killed or injured by the neglect of any employes of any railroad to keep such lookout, the company owning and operating any such railroad shall be liable and responsible to the person injured for all damages resulting from the neglect to keep such lookout, and the burden of proof shall devolve upon such railroad to establish the fact that this duty has been performed.'

It is held by the Supreme Court of that state that this statute applies as well to the running of trains in railroad yards as elsewhere. Railway v. McQueeney, 78 Ark. 28, 92 S.W. 1120; Railway v. Graham, 102 S.W. 700. On its face this statute only creates the liability of a railroad when the injury or death results from neglect, which consists in failing to keep a constant lookout for persons upon its track. Like any other act of negligence, which is always a relative term, the degree of vigilance is measured by the surrounding circumstances.

The chief insistence of plaintiff's counsel is that under the special circumstances, when the employes in charge of the movement of the engine and cars knew that a multitude of people were thronging about the track on which the movement was proposed to be made, it was a wanton act to undertake it without taking such affirmative measures of precaution as would certainly have assured them that no person would be on the track. This extreme proposition cannot rest alone upon the terms of said statute. The only requirement it imposes is that the persons running the train should 'keep a constant lookout for persons upon the track. ' Applied in a practical way, the lawmakers evidently had in mind the probability that persons, whether rightfully or wrongfully, might get upon railroad tracks, and therefore, out of consideration for their lives and limbs, they required those running trains to keep a constant lookout for such possibilities, and thereby avoid, as near as might be, injuring them. When, however, the conductor, engineer, and fireman, while the train is running, keep such lookout, they discharge the duty imposed by this statute, and no liability would attach to the railroad for striking and injuring the person upon its track in so far as the statute itself is concerned. This, it seems to us, must be conceded.

In this respect the testimony of the engineer and the fireman in charge of the engine was that from their respective sides of the cab each kept a sharp lookout ahead, and they had no knowledge that the plaintiff had gone between the cars although they knew that many people were about the train and had been passing through the same. It therefore devolved upon the plaintiff to show something more to inculpate the defendant company. On the cross-examination of the engineer (Dillon) he was indulged to state what he said to the switchman who gave him the order to move the train, which was to the effect...